Wilson v. State
Decision Date | 21 February 1979 |
Docket Number | No. 2,No. 56810,56810,2 |
Parties | Darrell Wayne WILSON, Appellant, v. The STATE of Texas, Appellee |
Court | Texas Court of Criminal Appeals |
Walter J. Pink, Houston, for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and Robert A. Moen, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before ODOM, PHILLIPS and DALLY, JJ.
This is an appeal from a conviction for rape of a child; punishment was assessed by the jury at ten years.
In his third ground of error appellant contends the trial court committed reversible error by refusing his requested charge on the defensive issue of mistaken identification. The State argues the issue was not preserved at trial and the evidence did not raise the issue.
Although the requested charge submitted by appellant was no model, we conclude it was sufficient to call the court's attention to the issue he sought to have submitted. It began:
Although other portions of the lengthy requested instruction would have been improper comments on the weight of the evidence had the court included them in the charge, the part quoted here was sufficient to put the court on notice of appellant's request, and to preserve the issue for review. See Sledge v. State, Tex.Cr.App., 507 S.W.2d 726; Art. 36.15, V.A.C.C.P.
We must therefore decide whether it was error to deny appellant a jury charge on mistaken identification. The offense was committed on December 1, 1975. Richard Bennett testified that on December 26 he, appellant, and two other persons were displayed before the complaining witness for possible identification as one of the three persons who had raped her, and that she said neither appellant nor either of the others had committed the rape. Although this testimony was contradicted by the State's evidence, the issue before this Court is not the truth or falsity of the defensive evidence. The issue on appeal is whether that evidence raised the defensive issue of mistaken identification. 1
In Wheeler v. State, 56 Tex.Cr.R. 547, 121 S.W. 166, Presiding Judge Davidson wrote for the Court:
This rule applies as well to the defensive issue of mistaken identity. In Briscoe v. State, 106 Tex.Cr.R. 478, 293 S.W. 573, the Court approved the affirmative submission of an identity charge:
Although some cases indicate that the defensive issue of mistaken identification can be raised by evidence that someone other than the accused committed the offense, e. g. Florio v. State, Tex.Cr.App., 532 S.W.2d 614, that does not mean such evidence is the only way to raise the issue. We hold the defensive issue of mistaken identification is also raised by evidence that someone other than the accused had been identified as the perpetrator of the crime or by evidence that the identifying witness had on a prior occasion failed to identify the accused when given an opportunity to do so. In this case such evidence was presented, and the failure of the trial court to submit an affirmative jury charge on this defensive issue when requested to do so by appellant presents reversible error.
The judgment is reversed and the cause remanded.
The complainant, who was five feet four inches tall and a ninth grade student on December 1, 1975, the day the offense was committed, lived with her mother and sisters at Clayton Homes in Houston.
The appellant and two others assaulted the complainant, carried her, while she was fighting and screaming, to an area near some warehouses and box cars. All three raped the complainant, who said she had a good opportunity to see the appellant's face while he was on top of her. She had never before seen the appellant and did not know his name.
About one week after she was raped the complainant was shown photographs of five people. She identified a photograph of the appellant as one of the three rapists. Later, police officers on two occasions had her view a lineup at the Clayton Homes office. She did not identify anyone in either lineup. She testified she had never misidentified anyone as one of the rapists and she had never told anyone that someone other than the appellant or one of his companions had raped her.
The appellant testified that he did not rape the complainant and that he spent the day on December 1 in a gymnasium playing basketball with his friend Richard Bennett. The appellant also said he had appeared in a police lineup and the complainant failed to identify him. Richard Bennett testified that he had been at the gymnasium with appellant at the time of the rape. Bennett also testified that he had been in a police lineup with the appellant and that the complainant failed to identify the appellant as one of the rapists.
It would not be proper to instruct the jurors to acquit the appellant if they found that the complainant had failed to identify appellant in the police lineup; therefore, misidentification is not an affirmative defense. In Ward v. State, 505 S.W.2d 832 (Tex.Cr.App.1974), this Court, in rejecting the contention that the trial court erred in failing to grant the defendant's instruction on misidentification, stated:
In the instant case, just as in Ward, the charge affirmatively required the jury to find beyond a reasonable doubt that the appellant committed the offense before he could be convicted and that if the jury had a reasonable doubt as to appellant's guilt it should acquit him. Although the appellant argues that his testimony and that of his friend raised the issue of misidentification for the jury's consideration, this evidence would not require a submission on the issue of identity. The appellant's rights were adequately protected as to any issue raised regarding identity by the court's charge, and the trial court did not err in failing to instruct the jury as requested by the appellant. In Laws v. State, 549 S.W.2d 738 (Tex.Cr.App.1977), a case not mentioned by the majority, we recently rejected a defendant's contention that he was entitled to a charge on misidentification because it would improperly single out evidence for the jury's consideration.
Wheeler v. State, 56 Tex.Cr.R. 547, 121 S.W. 166 (1909), cited by the majority, is not apposite because there, if found to be true by the jury, the defensive matter was an affirmative defense that would require that the defendant be acquitted. That the complainant in the instant case may have failed to identify the appellant in one lineup would not require the jury to acquit the appellant; it was not an affirmative defense.
Briscoe v. State, 106 Tex.Cr.R. 478, 293 S.W. 573 (1926), cited by the majority, is not a case in which the Court held that it was necessary to submit a charge on misidentification. The Court there merely observed that the trial court had submitted such a charge. The majority cites no case that has ever required that a charge on identity be submitted to the jury. Such a charge would be in the nature of a special issue criminal cases are submitted on a general charge. Moreover, any such charge would constitute a comment on the weight of the evidence. The majority fails to advise the bench and bar how such a charge could be worded so as not to constitute a comment on the weight of the evidence. The most important reason why such a charge is unnecessary is because mistaken identity is not an affirmative defense.
The majority is clearly wrong; I dissent to the reversal of the judgment.
Before the Court En Banc.
OPINION ON STATE'S MOTION FOR REHEARING
Appeal is taken from a conviction for rape of a child. V.T.C.A. Penal Code, Sec. 21.09. Punishment was assessed by the jury at 10 years.
Appellant does not challenge the sufficiency of the evidence to support his conviction. We will review the evidence only as necessary to the disposition of appellant's grounds of error.
Appellant contends that the trial court erred in failing to charge the jury on the issue of mistaken identity. Appellant timely requested such a charge in writing.
Evidence was offered by the appellant that appellant and two other persons were displayed before the complaining witness...
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